Free Motion for Review - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

Document 283

Filed 10/23/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. ______________________________________________________________________________ PLAINTIFF'S MOTION TO REVIEW TAXATION OF COSTS ______________________________________________________________________________ COMES NOW, the Plaintiff, M.D. Mark, Inc., by and through its attorneys, Pelz, Bonifazi & Inderwish, P.C., and hereby Motions this Court to Review Taxation of Costs, stating as follows: INTRODUCTION On October 16, 2007, the Clerk taxed costs in favor of the M.D. Mark, Inc. in the amount of $10,530.62. M.D. Mark previously submitted a Bill of Costs requesting payment of

$91,906.31 with supporting documentation. The Defendant, Kerr-McGee Corporation objected to $71,037.84 of the $91,906.31 submitted, not objecting to the balance of $20,868.43. LEGAL STANDARD F.R.C.P. Rule 54(d) provides that the District Court may, in its discretion, award costs to the prevailing party in a lawsuit, unless the Court otherwise directs. 28 USC §1920 defines the term "costs" as used in Rule 54(d). The Plaintiff requests that the Court award an additional $24,728.02 in discretionary costs. There is a presumption in favor of awarding costs to a

Case 1:01-cv-00413-JLK-BNB

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Filed 10/23/2007

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prevailing party. There are two categories of costs which Plaintiff contends it is entitled to receive an awarded as discretionary costs. Those are as follows: I. Section §1920 (2) COSTS The Clerk awarded $7,016.87 for the depositions of: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Thomas Russell Glenn Morton Glenn Morton (2nd) Jay Skinner Robert Quillin Paul Schlirf Robert Lowe Robert Gray Marilyn Young Ann Lane $542.65; $485.00 $687.50 $298.23 $298.23 $639.30 $774.95 $745.30 $516.06 and $1,377.50.

Pursuant to 28 U.S.C.A. §1920(2), the costs of stenographic transcripts of individuals who later testified at trial are taxable, as are costs for depositions cited in summary judgment briefs, costs of depositions where depositions excerpts were exchanged for use at trial and costs of the transcripts of individuals who did not testify at trial but whose names appeared on the pretrial order as well as one of the parties' final witness lists. Karsian v. Inter-Regional Financial Group, Inc., D.Colo.,1998. 13 F.Supp.2d 1085 The Defendants eventually called Darren Helm, Mark Kramer, Robert Lowe, Dan Miller, Carlos Salazar, Tom Schultz and Marilyn Young as their witnesses. The Plaintiff's witnesses who were on the pretrial order as well as the final witness list who either did or did not testify at trial along with the deposition transcription costs are as follows: 1. 2. 3. John E. Moye Dan Hahn Patricia Cherne $328.80; $494.61; $253.85;

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Case 1:01-cv-00413-JLK-BNB

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Filed 10/23/2007

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4. 5.

Darren Helm Marilyn Davies

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6. 7.

Carlos Salazar Tom Schultz

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$417.00; $559.05, $569.70, $241.00 & $250.00 for a total of $1,873.60; $622.75 and $571.53 $571.52

TOTAL $4,879.54 Therefore an additional $4,879.54 should be taxable as costs. These above items include the costs of depositions where deposition excerpts were exchanged for use at trial. II. §1920(4) COSTS

The Plaintiff requested printing fees in the amount of $7,238.26. The Defendant apparently only objected to $3,619.13 of that amount. The Clerk awarded $1,247.25. The Plaintiff asked for costs in the amount of $4,045.26 which it paid for the preparation of twelve juror exhibit notebooks for trial and asked for costs for color copies of deposition designations used a trial in the amount of $398.82 for a total of $4,444.08. Costs associated with binders, index tabs, bates-labeling and other photocopying-related costs, if reasonably necessary to the case are taxable as costs. All of the binders, index tabs, bates-labeling and other photocopying costs were reasonably necessary to the case. At least 16,800 documents were "necessarily obtained for use in this case". The Plaintiff copied, bates labeled and scanned every document produced in this case and these documents had to be used for pleadings, motions, deposition preparation, document exchanges and other such matters. The total costs to scan, bates label and copy exhibits was $4,414.43. The Plaintiffs incurred costs of $10,989.97 with Zara Media to develop a demonstrative exhibit to simplify the jurors' understanding of the Plaintiff's trade secrets and how they are use in the industry. Mikel v. Kerr, 499 F.2d 1178, 1182-83 (10th Cir. 1974) All the costs described herein were incurred for use in

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Case 1:01-cv-00413-JLK-BNB

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Filed 10/23/2007

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this case. The total of these costs over and above what has already been determined by the Clerk is $24,728.02. SUMMARY The total additional discretionary costs which the Plaintiff's request is $24,728.02 WHEREFORE, Plaintiff prays that this Court enter an Order granting its discretionary costs and such other relief as the Court deems appropriate. DATED: October 23, 2007. Respectfully submitted, PELZ, BONIFAZI & INDERWISH, P.C. s/ Harlan P. Pelz Harlan P. Pelz Daniele W. Bonifazi 1873 South Bellaire Street, Suite 1401 Denver, CO 80222 Telephone: 303-691-5600 Facsimile: 303-691-5606 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on the 23rd day of October, 2007, a true and correct copy of the foregoing PLAINTIFF'S MOTION TO REVIEW TAXATION OF COSTS was faxed and placed in the United States Mail, postage prepaid, addressed as follows: Scott S. Barker, Esq. Gregory E. Goldberg, Esq. HOLLAND & HART, LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 303/295-8261 Fax s/ Allison E. Goldstein_____ Allison E. Goldstein

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